Citation Nr: 0830643
Decision Date: 09/10/08 Archive Date: 09/16/08
DOCKET NO. 07- 00 490 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUES
1. Entitlement to service-connection for bilateral hearing
loss.
2. Entitlement to service-connection for hypertension.
REPRESENTATION
Veteran represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
R.D. Perry-Beach, Associate Counsel
INTRODUCTION
The veteran served on active duty in the United States Army
from August 1968 to February 1972 and September 1974 to May
1993.
This case comes to the Board of Veterans' Appeals (the Board)
on appeal from an August 2006 rating decision of the
Department of Veterans Affairs Regional Office (RO) in
Milwaukee, WI which denied the veteran's claim for
entitlement to service connection for bilateral hearing loss
and hypertension.
FINDINGS OF FACT
1. The veteran's current hearing loss is not caused by or a
result of military noise exposure.
2. The veteran's hypertension is first shown to be
manifested to a compensable degree several years after the
veteran's discharge from service, and the greater weight of
evidence is against finding that it is related to a disease
or injury incurred during service.
CONCLUSIONS OF LAW
1. Service connection for bilateral hearing loss is not
warranted. 38 U.S.C.A.
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.385 (2007).
2. Hypertension was not incurred in or aggravated by active
service, and may not be presumed to have been incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131,
1133, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA), codified
in part at
38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. §
3.159, amended VA's duties to notify and assist a claimant in
developing the information and evidence necessary to
substantiate a claim. Under 38 U.S.C.A. § 5103, VA must
notify the claimant of the information and evidence not of
record that is necessary to substantiate the claim, which
information and evidence VA will seek to provide and which
information and evidence the claimant is expected to provide.
In this case, VA essentially satisfied the notification
requirements of the VCAA by means of a letter dated in March
2006. The RO informed the appellant of the types of evidence
needed in order to substantiate his claims for service
connection; the division of responsibility between the
appellant and VA for obtaining the required evidence; and the
RO requested that the appellant provide any information or
evidence in his possession that pertained to such claims.
Thus, the Board finds no prejudice in proceeding with
adjudication of the appeal.
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued a decision in the consolidated
appeal of Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006), which held that the VCAA notice
requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. Those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. The Court held that the
VCAA notice must include notice that a disability rating and
an effective date of the award of benefits will be assigned
if service connection was awarded.
In the present appeal, the veteran did not receive notice as
to the disability rating and effective date elements until a
March 2006 letter. Despite the error as to timeliness, the
Board finds no prejudice to the veteran in proceeding with
the issuance of a final decision because his claims were
subsequently readjudicated in a statement of the case and a
supplemental statement of the case. Furthermore, as the
Board concludes below that the preponderance of the evidence
is against the veteran's claims, any questions as to the
appropriate disability rating or effective date to be
assigned are rendered moot. See Bernard v. Brown, 4 Vet.
App. 384, 394 (1993).
The Board also finds that VA has made reasonable efforts to
obtain relevant records adequately identified by the
appellant. Specifically, the information and evidence that
have been associated with the claims file consist of
appellant's service medical records, and post-service medical
records, and other pertinent documents discussed below. The
RO has obtained the veteran's SMRs and private treatment
records, and the appellant underwent VA examinations in May
2006 to clarify the nature and etiology of his claimed
disabilities.
In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal, and for the
reasons expressed above finds that the development of the
claims have been consistent with the provisions of the VCAA.
The appellant has been provided with every opportunity to
submit evidence and argument in support of his claims, and to
respond to VCAA notice. The purpose behind the notice
requirement has been satisfied, because the appellant has
been afforded a meaningful opportunity to participate
effectively in the processing of his appealed claims.
Relevant law and regulations
Service connection may be granted for disability or injury
incurred in or aggravated by active military service. See 38
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007).
In order to establish service connection for the claimed
disorder, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999). The determination as to
whether these requirements are met is based on an analysis of
all the evidence of record and the evaluation of its
credibility and probative value. See Baldwin v. West, 13
Vet. App. 1, 8 (1999).
In order for hearing loss to be considered a disability for
VA purposes entitling the appellant to compensation benefits,
certain criteria must be met. Under 38 C.F.R. § 3.385
(2007), impaired hearing will be considered to be a
disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels
or greater; or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz
are 26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent. The
regulation does not state that the requirements contained
therein need be met during service. See Ledford v.
Derwinski, 3 Vet. App. 87 (1992).
Hypertension means persistently high arterial blood pressure,
and by some authorities the threshold for high blood pressure
is a reading of 140/90. Dorland's Illustrated Medical
Dictionary at 889 (30th ed. 2003). For VA purposes, however,
hypertension means that the diastolic pressure is
predominantly 90 or greater, and isolated systolic
hypertension means that the systolic pressure is
predominantly 160 or greater with a diastolic pressure of
less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101
(2007).
Where a veteran served continuously for 90 days or more
during a period of war, or during peacetime service after
December 31, 1946, and hypertension, coronary artery disease,
or arteriosclerosis become manifest to a degree of 10 percent
within 1 year from date of termination of such service, such
diseases shall be presumed to have been incurred in service,
even though there is no evidence of such diseases during the
period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007).
If the record demonstrates that the veteran engaged in combat
with enemy forces, then by statute VA shall accept as
sufficient proof of service connection of any disease or
injury alleged to have been incurred in or aggravated by such
service, satisfactory lay or other evidence of service
incurrence or aggravation of such injury or disease, if
consistent with the circumstances, conditions, or hardships
of such service, notwithstanding the fact that there is no
official record of such incurrence or aggravation in such
service, and to that end, shall resolve every reasonable
doubt in favor of the veteran. Service connection of such
injury or disease may be rebutted by clear and convincing
evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002).
Hearing Loss
The veteran seeks service connection for bilateral hearing
loss which he contends is a result of extreme noise exposure
while serving on active duty. See April 2006 statement in
support of claim.
With respect to the matter of a current disability, the
results of the May 2006 VA examination report satisfy the
requirements of 38 C.F.R. § 3.385 for establishing a current
hearing loss disability.
With respect to the matter of in-service disease or injury,
the veteran has asserted that he suffered acoustic trauma
from exposure to noise associated with combat and jet
aircrafts. See January 2007 substantive appeal. The Board
notes that the veteran's DD 214 form confirms that his MOS
was a pilot. The Board also notes that the veteran did
engage in combat with the enemy within the meaning of
38 U.S.C.A. § 1154(b). In this regard, the official records
indicate that the veteran was awarded a medal or decoration
indicative of combat service. Thus, for the purposes of this
decision, the Board will assume that the veteran experienced
hazardous noise exposure during service.
The Board notes, however, that 38 U.S.C.A. § 1154(b) does not
establish service connection for a combat veteran; it aids
him by relaxing the adjudicative evidentiary requirements for
determining what happened in service. The Board is satisfied
by the evidence of incurrence event in the form of noise
exposure. The questioning that remains is whether he has a
current disability related to that exposure.
With respect to whether the veteran's currently diagnosed
hearing loss disability is related to service, the Board
finds that the greater weight of competent evidence does not
support such a link. Specifically, the Board notes that the
veteran was provided a May 2006 VA examination to determine
the nature and etiology of his disability, wherein the
examiner concluded that the "veteran's hearing was normal in
both ears at military discharge per the discharge audiogram,
and that therefore in [the examiner's] opinion [the
veteran's] current hearing loss was not caused by or a result
of military noise exposure."
While the Board acknowledges that the audiogram findings of
the February 2006 private examination have been included in
the claims folder, it notes that these results were
uninterpreted. In this regard, the Board notes that neither
the RO nor the Board is competent to interpret graphical
representations of audiometric data. Kelly v. Brown, 7 Vet.
App. 471, 474 (1995). Consequently, the Board may not
consider these examination results in its decision.
To the extent that the veteran himself and his representative
contend that a medical relationship exists between his
current hearing loss and service, there is no indication that
they are qualified through education, training, or experience
to offer such a medical opinion. Thus, any such statements
offered in support of the veteran's claim do not constitute
competent medical evidence and cannot be accepted by the
Board. See also Cromley v. Brown, 7 Vet. App. 376, 379
(1995).
In summary, for the reasons and bases stated above, the Board
concludes that the preponderance of the evidence is against
the claim of service connection for bilateral hearing loss.
Thus, the benefit sought on appeal is denied.
Hypertension
The veteran seeks service connection for hypertension which
he contends developed while serving on active duty. See
September 2006 substantive appeal.
With respect to the matter of a current disability, the Board
notes that there are numerous diagnoses of record of
hypertension.
With respect to the matter of in-service disease or injury,
the Board notes that the veteran's service medical records
indicate that his blood pressure was tested consistently
throughout his active duty service. His highest recorded
systolic pressure was 148. The veterans diastolic pressure
was consistently 88 or below. Though the Board acknowledges
that evidence of record indicates higher readings during
service to include diastolic pressure ranging from 90 to 100,
it points out that these diastolic pressures represent 41 of
approximately 125 readings that were taken throughout the
veteran's active duty service. Given that the other
diastolic readings were all 88 or under, the record does not
reflect that the veteran's diastolic pressure was
predominately 90 or greater throughout his active duty
service. In addition, his diastolic pressure was recorded at
74 and his systolic pressure was 132 in February 1993, only
three months prior to separation, indicating no signs of
hypertension.
The Board notes that service medical records dated in
September 1974, March 1978, March 1979, March 1980, March
1981, March 1983, March 1986, August 1986, and October 1991,
all contain notations of elevated blood pressure. However,
the Board points out that there is no indication that the
veteran was diagnosed with or treated for hypertension while
serving on active duty. In this regard, the Board
specifically points out the results of an October 1973
clinical evaluation wherein the examiner concluded that the
veteran was normotensive. Though the Board acknowledges the
August 1986 and February 1993 diagnoses of labile
hypertension, it also notes that labile hypertension is
defined as blood pressure that fluctuates abruptly and
repeatedly, and does not necessarily encompass the criteria
set forth above for establishing entitlement to service
connection for hypertension.
As to whether the current hypertension is related to service,
the Board finds that the record does not support such a link.
Most significantly, the Board notes that the veteran was
provided a May 2006 VA examination to determine the nature
and etiology of his disability, wherein the examiner
concluded that the veteran's hypertension was not caused by
or a result of active military service. The examiner based
his opinion on the fact that the veterans SMRs showed
generally normal blood pressure readings, that the veteran
was a fighter pilot who maintained flight status and had no
comment of hypertension on multiple stress tests, and finally
that the veteran was not treated for hypertension until
approximately 9 years after separation. The Board finds this
opinion by a competent health care provider to be the most
persuasive evidence of record.
There is also no evidence to suggest that hypertension
manifested within one year of service.
To the extent that the veteran himself and his representative
contend that a medical relationship exists between his
hypertension and service, such claims do not constitute
competent medical evidence and cannot be accepted by the
Board.
Cromley v. Brown, supra. The Board has also considered the
veteran's apparent assertions that he was told that he had
high blood pressure or hypertension during service. However,
"the connection between what a physician said and the
layman's account of what he purportedly said, filtered as it
was through a layman's sensibilities, is simply too
attenuated and inherently unreliable to constitute 'medical'
evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995).
Consequently, the Board finds the opinion of the VA examiner
to be the most probative and persuasive evidence of record.
As noted, that examiner reviewed the veteran's service
medical records, as well as post-service treatment records,
and concluded that his current hypertension was unrelated to
service.
In summary, for the reasons and bases stated above, the Board
concludes that the preponderance of the evidence is against
the claim of service connection for hypertension. Thus, the
benefit sought on appeal is denied.
ORDER
Entitlement to service-connection for bilateral hearing loss
is denied.
Entitlement to service-connection for hypertension is denied.
____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs